MAINSTAY VP SERIES FUND, INC.
FORM OF MANAGEMENT AGREEMENT
This Agreement is made as of the ____ day of March, 2005 between
MainStay VP Series Fund, Inc., a Maryland Corporation ("the Company") and New
York Life Investment Management LLC, a Delaware limited liability company
("Manager").
W I T N E S S E T H:
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WHEREAS, the Company is an open-end management investment company
registered under the Investment Company Act of 1940, as amended ("1940 Act");
WHEREAS, the shares of beneficial interest of the Company ("Shares")
are divided into separate series (the "Portfolios"), each of which is
established by resolution of the Board of Directors of the Company and the
Directors may from time to time terminate such series or establish and terminate
additional series; and
WHEREAS, the Company desires to retain the Manager to render investment
advisory and related administrative services to the Company with regard to such
Portfolios as shall be designated in Supplements to this Agreement, and the
Manager is willing to render such services on the terms and conditions
hereinafter set forth;
NOW, THEREFORE, the parties agree as follows:
1. APPOINTMENT. The Company hereby appoints New York Life Investment
Management LLC to act as manager to such Portfolios as shall be designated in
supplements to the Agreement for the period and on the terms set forth in this
Agreement. The Manager accepts such appointment and agrees to render the
services herein described, for the compensation herein provided.
2. DUTIES AS MANAGER. Subject to the supervision of the Directors of
the Company, the Manager shall administer each Portfolio's business affairs and
manage the investment operations of each Portfolio and the composition of the
portfolio of each Portfolio, including the purchase, retention and disposition
thereof, in accordance with the investment objectives, policies and restrictions
of each Portfolio, as stated in its currently effective Prospectus (as
hereinafter defined) and subject to the following understandings:
(a) The Manager shall (i) furnish each Portfolio with office
facilities; (ii) be responsible for the financial and accounting records
required to be maintained by each Portfolio (excluding those being maintained by
the Portfolio's custodian and transfer agent except as to which the Manager has
supervisory functions) and other than those being maintained by the Portfolio's
subadviser, if any; and (iii) furnish each Portfolio with ordinary clerical,
bookkeeping and recordkeeping services at such office facilities.
(b) The Manager shall provide supervision of each Portfolio's
investments and determine from time to time what investments or securities will
be purchased, retained, sold
or lent by each Portfolio, and what portion of each Portfolio's assets will be
invested or held uninvested as cash.
(c) The Manager shall use its best judgment in the performance of
its duties under this Agreement.
(d) The Manager, in the performance of its duties and obligations
under this Agreement, shall act in conformity with the Articles of
Incorporation, By-Laws and Prospectus (each as hereinafter defined) of the
Company and with the instructions and directions of the Directors of the
Company, and will conform to and comply with the requirements of the 1940 Act
and all other applicable federal and state laws and regulations.
(e) The Manager, and any subadviser to whom such authority has been delegated,
shall determine the securities to be purchased or sold by each Portfolio and
will place orders pursuant to its determination with or through such persons,
brokers or dealers (including NYLIFE Securities Inc.) in conformity with the
policy with respect to brokerage as set forth in the Company's Registration
Statement and Prospectus (each as hereinafter defined) or as the Directors may
direct from time to time. It is recognized that, in providing a Portfolio with
investment supervision or the placing of orders for portfolio transactions, the
Manager or any subadviser will give primary consideration to securing the most
favorable price and efficient execution. Consistent with this policy, the
Manager or any subadviser may consider the financial responsibility, research
and investment information and other services provided by brokers or dealers who
may effect or be a party to any such transaction or other transactions to which
other clients of the Manager or any subadviser may be a party. It is understood
that none of the Portfolios, nor the Company or the Manager or subadviser, has
adopted a formula for allocation of a Portfolio's investment transaction
business. It is also understood that it is desirable for each Portfolio that the
Manager or any subadviser have access to supplemental investment and market
research and security and economic analyses provided by certain brokers who may
execute brokerage transactions at a higher cost to a Portfolio than may result
when allocating brokerage to other brokers on the basis of seeking the most
favorable price and efficient execution. Therefore, the Manager or any
subadviser is authorized to place orders for the purchase and sale of securities
for a Portfolio with such certain brokers, subject to review by the Company's
Directors from time to time with respect to the extent and continuation of this
practice. It is understood that the services provided by such brokers may be
useful to the Manager or any subadviser in connection with its services to other
clients.
On occasions when the Manager or any subadviser deems the purchase or
sale of a security to be in the best interest of a Portfolio as well as other
clients, the Manager or any subadviser, to the extent permitted by applicable
laws and regulations, may, but shall be under no obligation to, aggregate the
securities to be so sold or purchased in order to obtain the most favorable
price or lower brokerage commissions and efficient execution. In such event,
allocation of the securities so purchased or sold, as well as expenses incurred
in the transaction, will be made by the Manager or any subadviser in the manner
it considers to be the most equitable and consistent with its fiduciary
obligations to that Portfolio and to such other clients.
(f) The Manager shall maintain all books and records with respect to
each Portfolio's securities transactions required by sub-paragraphs (b)(5), (6),
(9) and (10) and
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paragraph (f) of Rule 31a-1 under the 1940 Act and any other books and records
required to be maintained by it under the 1940 Act and the Rules thereunder and
shall render to the Company's Directors such periodic and special reports as the
Directors may reasonably request.
(g) The Manager shall provide the Company's custodian on each
business day with information relating to the execution of all portfolio
transactions pursuant to standing instructions.
(h) With respect to any or all series of the Company, including the
Portfolios, the Manager may enter into one or more contracts ("Sub-Advisory
Contract or Sub-Administration Contract") with a subadviser or sub-administrator
in which the Manager delegates to such subadviser or sub-administrator any or
all its duties specified in this Agreement, provided that each Sub-Advisory
Contract or Sub-Administration Contract meets all requirements of the 1940 Act
and rules thereunder.
3. MANAGER PERSONNEL. The Manager shall authorize and permit any of its
directors, officers and employees who may be elected or appointed as Directors
or officers of the Company to serve in the capacities in which they are elected
or appointed. Services to be furnished by the Manager under this Agreement may
be furnished through the medium of any of such directors, officers or employees.
4. BOOKS AND RECORDS. The Manager shall keep each Portfolio's books and
records required to be maintained by it, pursuant to paragraph 2 hereof. The
Manager agrees that all records which it maintains for a Portfolio are the
property of that Portfolio, and it will surrender promptly to that Portfolio any
of such records upon the Portfolio's request. The Manager further agrees to
preserve for the periods prescribed by Rule 31a-2 as promulgated by the
Securities and Exchange Commission (the "Commission") under the 1940 Act any
such records as are required to be maintained by the Manager pursuant to
paragraph 2 hereof.
5. SERVICES NOT EXCLUSIVE. The services furnished by the Manager
hereunder are not to be deemed exclusive and the Manager shall be free to
furnish similar services to others so long as its services under this Agreement
are not impaired thereby.
6. DOCUMENTS. The Company has delivered to the Manager copies of each
of the following documents and will deliver to it all future amendments and
supplements, if any:
(a) Articles of Incorporation of the Company, filed with the state
of Maryland (such Articles of Incorporation, as in effect on the date hereof and
as amended from time to time, are herein called the "Articles");
(b) By-Laws of the Company (such By-Laws, as in effect on the date
hereof and as amended from time to time, are herein called the "By-Laws");
(c) Certified Resolutions of the Directors of the Company
authorizing the appointment of the Manager and approving the form of this
Agreement;
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(d) Registration Statement under the 1940 Act and the Securities Act
of 1933, as amended, on Form N-lA (the "Registration Statement"), as filed with
the Commission, relating to each Portfolio and each Portfolio's Shares and all
amendments thereto;
(e) Notification of Registration of the Company under the 1940 Act
on Form N-8A as filed with the Commission and all amendments thereto; and
(f) Each form of Prospectus and Statement of Additional Information
of the Company (such Prospectuses and Statement of Additional Information, as
currently in effect and as amended or supplemented from time to time, being
herein called collectively the "Prospectus").
7. EXPENSES. (a) In connection with the services rendered by the
Manager under this Agreement, the Manager will bear all of the following
expenses:
(i) the salaries and expenses of all personnel of the Company
and the Manager, except the fees and expenses of Directors who are not
interested persons of the Manager or of the Company, and
(ii) all expenses incurred by the Manager in connection with
managing the investment operations of each Portfolio and administering the
ordinary course of each Portfolio's business, other than those assumed by that
Portfolio herein;
(b) Each Portfolio assumes and will pay its expenses, including but
not limited to those described below (where any such category applies to more
than one series of the Company, each Portfolio shall be liable only for its
allocable portion of the expenses):
(i) the fees and expenses of Directors who are not interested
persons of the Manager or of the Company;
(ii) the fees and expenses of the Portfolio's custodian which
relate to (A) the custodial function and the recordkeeping connected therewith,
(B) the maintenance of the required accounting records of the Portfolio not
being maintained by the Manager, (C) the pricing of the Portfolio's Shares,
including the cost of any pricing service or services which may be retained
pursuant to the authorization of the Directors of the Company, and (D) for both
mail and wire orders, the cashiering function in connection with the issuance
and redemption of the Portfolio's Shares;
(iii) the fees and expenses of the Company's transfer and
dividend disbursing agent, which may be the custodian, which relate to the
maintenance of each shareholder account;
(iv) the charges and expenses of legal counsel and independent
accountants for the Company;
(v) brokers' commissions and any issue or transfer taxes
chargeable to the Company in connection with its securities transactions on
behalf of the Portfolios;
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(vi) all taxes and business fees payable by the Company or the
Portfolios to federal, state or other governmental agencies;
(vii) the fees of any trade association of which the Company
may be a member;
(viii) [the fees and expenses involved in registering and
maintaining registration statements of the Company and its Shares with the
Commission, registering the Company as a broker/dealer and qualifying its shares
and/or complying with notice and other applicable requirements under state
securities laws, including the preparation and printing of the Company's
registration statements and prospectuses for filing under federal and state
securities laws for such purposes;]
(ix) the cost of share certificates, if any, representing
Portfolio Shares;
(x) allocable communications expenses with respect to investor
services and all expenses of shareholders' and Directors' meetings and of
preparing, printing and mailing prospectuses, proxies and other reports to
shareholders (or as appropriate, policyholders) in the amount necessary for
distribution to the shareholders and/or policyholders;
(xi) litigation and indemnification expenses and other
extraordinary expenses not incurred in the ordinary course of the Company's
business; and
(xii) any expenses assumed by the Portfolios pursuant to a
Plan of Distribution adopted in conformity with Rule 12b-1 under the 1940 Act.
(c) Fees and expenses of legal counsel, of registering shares and
complying with state securities laws, of holding meetings and of communicating
with shareholders as described in subparagraph (b) above include an allocable
portion of the cost of maintaining an internal legal and compliance department.
8. ORGANIZATION EXPENSES. Each Portfolio hereby agrees to reimburse the
Manager for the organization expenses of, and the expenses incurred in
connection with, the initial offering of any Shares of that Portfolio.
9. COMPENSATION. For the services provided and the facilities furnished
pursuant to this Agreement, the Company will pay to the Manager as full
compensation therefor a fee at annual rates set forth in the Supplement to this
Agreement with respect to each Portfolio.
This fee will be computed daily and will be paid to the Manager
monthly. This fee will be chargeable only to the respective Portfolio, and no
other series of the Company shall be liable for the fee due and payable
hereunder. No Portfolio shall be liable for any expense of any other series of
the Company.
10. STANDARD OF CARE. Subject to applicable law, the Manager shall not
be liable for any error of judgment or for any loss suffered by a Portfolio in
connection with the matters to which this Agreement relates, except a loss
resulting from willful misfeasance, bad faith or gross
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negligence on its part in the performance of its duties or from reckless
disregard by it of its obligations and duties under this Agreement.
11. DURATION AND TERMINATION. This Agreement shall continue in effect
with respect to a Portfolio for a period of more than two years from the date of
the Supplement to this Agreement with respect to that Portfolio only so long as
such continuance is specifically approved at least annually with respect to that
Portfolio in conformity with the requirements of the 1940 Act and the Rules
thereunder; provided, however, that this Agreement may be terminated with
respect to any Portfolio at any time, without the payment of any penalty, by the
Directors of the Company or by vote of a majority of the outstanding voting
securities (as defined in the ▇▇▇▇ ▇▇▇) of that Portfolio, or by the Manager at
any time, without the payment of any penalty, on not more than 60 days' nor less
than 30 days' written notice to the other party. This Agreement shall terminate
automatically in the event of its assignment (as defined in the 1940 Act).
12. OTHER BUSINESS. Nothing in this Agreement shall limit or restrict
the right of any director, officer or employee of the Manager who may also be a
Director, officer, or employee of the Company to engage in any other business or
to devote his or her time and attention in part to the management or other
aspects of any business, whether of a similar or dissimilar nature, nor limit or
restrict the Manager's right to engage in any other business or to render
services of any kind to any other corporation, trust, firm, individual or
association.
13. INDEPENDENT CONTRACTOR. Except as otherwise provided herein or
authorized by the Directors of the Company from time to time, the Manager shall
for all purposes herein be deemed to be an independent contractor and shall have
no authority to act for or represent any Portfolio or the Company in any way or
otherwise be deemed an agent of any Portfolio or the Company.
14. COMPANY MATERIALS. During the term of this Agreement, the Company
agrees to furnish the Manager at its principal office all Prospectuses, proxy
statements, reports to shareholders, sales literature or other materials
prepared for distribution to shareholders of a Portfolio or to the public, which
refer to the Manager in any way, prior to use thereof and not to use such
materials if the Manager reasonably objects in writing within five business days
(or such other time as may be mutually agreed) after receipt thereof. In the
event of termination of this Agreement, the Company will continue to furnish to
the Manager copies of any of the above-mentioned materials which refer in any
way to the Manager. The Company shall furnish or otherwise make available to the
Manager such other information relating to the business affairs of each
Portfolio as the Manager at any time, or from time to time, reasonably requests
in order to discharge its obligations hereunder.
15. AMENDMENT. This Agreement may be amended in writing by mutual
consent, but the consent of each of the Portfolios, if required, must be
obtained in conformity with the requirements of the 1940 Act and the Rules
thereunder.
16. NOTICE. Any notice or other communication required to be given
pursuant to this Agreement shall be deemed duly given if delivered or mailed by
registered mail, postage
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prepaid, (1) to the Manager at NYLIM Center, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇; or (2) to the Company at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇.
17. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
18. USE OF NAME. Each Portfolio may use any name including the word
"MainStay" only for so long as this Agreement or any other agreement between the
Manager or any other affiliate of New York Life Insurance Company or the Company
or any extension, renewal or amendment thereof remains in effect, including any
similar agreement with any organization which shall have succeeded to the
Manager's business as investment adviser. At such time as such an agreement
shall no longer be in effect, the respective Portfolio will (to the extent that
it lawfully can) cease to use such name or any other name indicating that it is
advised by or otherwise connected with the Manager or any organization which
shall have so succeeded to its business.
19. MISCELLANEOUS. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect. If any
provision of this Agreement shall be held or made invalid by a court decision,
statute, rule or otherwise, the remainder of this Agreement shall not be
affected thereby. As used in this Agreement, terms shall have the same meaning
as such terms have in the 1940 Act. Where the effect of a requirement of the
federal securities laws reflected in any provision of this Agreement is made
less restrictive by a rule, regulation or order of the Commission, whether of
special or general application, such provision shall be deemed to incorporate
the effect of such rule, regulation or order. This Agreement may be signed in
counterpart.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by their officers designated below as of the day and year first
above written.
MainStay VP Series Fund, Inc.
By:
-----------------------------
Name:
Title:
NEW YORK LIFE INVESTMENT
MANAGEMENT LLC
By:
-----------------------------
Name:
Title
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